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					                              No. 67,699




STATE OF FLORIDA, Petitioner,

        vs.

JOHN T. CREWS, Judge, Respondent.




                           [September 27, 1985]




ADKINS, Acting Chief Justice.

        We have before us the state's application for writ of

prohibition and motion to vacate stay.      On September 26, 1985,

the trial court granted Stephen Todd Booker's motion for an

evidentiary hearing and ordered a stay of execution.      We deny the

state's application for writ of prohibition and motion to vacate

stay.

        On November 8, 1983, Booker filed a motion for post-

conviction relief in the trial court.      Booker raised the claim of

ineffective assistance of trial counsel.      The trial court granted
an evidentiary hearing.    Following the hearing, the trial court

denied Booker's claim for relief.    Upon appeal, we affirmed the

trial court's order.    Booker v. State, 441 So.2d 148 (Fla. 1983).

        The state asserts that Booker's motion is an "abuse of the

post-conviction process" because it is his second motion for

post~conviction   relief filed in the state court system.     See

Smith v. State, 453 So.2d 388 (Fla. 1984).     We disagree.    State

v. Burton, 314 So.2d 136 (Fla. 1975), is controlling.       In Burton,

we held that since facts disclosed in an affidavit attached to
original motion for new trial and accepted as true were basically

false and such false statements constituted fraud practiced on

the court, the court had authority to entertain a petition for

rehearing and vacate a new trial order.       In this instance, the

trial court concluded that testimony produced at the hearing for

post-conviction relief on November 14, 1983, was false and

constituted a fraud on the court.       As a result, the trial court

had authority to entertain defendant's motion in post-conviction

relief.

          The trial court did not err in granting defendant an

evidentiary hearing on the claim of ineffective assistance of

counsel.     The movant is entitled to an evidentiary hearing unless

the motion or files and records in the case conclusively show

that the movant is entitled to no relief.       O'Callaghan v. State,

461 So.2d 1354, 1355 (Fla. 1984) (citations omitted) .

          The state has failed to show an abuse of the trial court's

discretion in finding that the files and records of the case do

not conclusively show that the defendant is entitled to no relief

on that ground.

          Accordingly, we deny the state's application for writ of

prohibition and motion to vacate stay.

          It is so ordered.


OVERTON, McDONALD, EHRLICH and     SHAW, JJ., Concur




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        Original Proceeding - Prohibition




        Jim Smith, Attorney General and Gary L. Printy, Assistant
        Attorney General, Tallahassee, Florida,

                for Petitioner




        John T. Crews, Circuit Judge, Respondent; and James E. Coleman, Jr.,
        Marian E. Lindberg and Jeffrey D. Robinson of Wilmer, Cutler and
        Pickering, Washington, D.C., Counsel for Stephen Todd Booker




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